House approves chemical storage tank bill, 95-0

CHARLESTON, W.Va. -- After more than a month of debate by three committees, a half dozen hearings and about 100 amendments, the West Virginia House of Delegates has unanimously passed a bill in response to January's Elk River chemical leak.

Everyone agreed on the need for a bill -- it passed 95-0 - but no one could quite agree on what should be in it.

On Wednesday, for the third time this week, the House debated and tinkered late into the night on a bill regulating above-ground storage tanks, like the one at the Freedom Industries tank farm that contaminated the drinking water of 300,000 people.

Now that the bill has cleared the House, the differences with the Senate's version must be ironed out and both bodies must re-approve the bill by Saturday night.

The House amended the bill to require the Bureau for Public Health to conduct a long-term study of health effects resulting from the chemical leak.

Both state and federal agencies are currently evaluating the records of more than 500 people who went to area hospitals reporting symptoms related to the water crisis, but are not currently doing more extensive studies of the population.

In advocating for more monitoring, Dr. Rahul Gupta, executive director of the Kanawha-Charleston Health Department, has said the people who reported symptoms are the "tip of the iceberg."

Delegate Meshea Poore, D-Kanawha, said Dr. Letitia Tierney, the commissioner of the Bureau for Public Health, had been inconsistent in her messages to lawmakers on the need for more study.

Tierney told a House committee earlier this week the bureau could do the study without legislation, but Poore and other delegates wanted to make sure the bureau did it, no matter who was in charge.

"Ms. Tierney, while she could keep her position, she might not be there next year," Poore said.

Lawmakers defeated a provision that would allow people to sue their water company, nearby chemical tank-owners, the Bureau for Public Health or the DEP to enforce the provisions of the bill.

The House passed a provision that would require West Virginia American to install an early warning monitoring system that could alert plant operators to the presence of contaminants in source water.

That requirement had also been in an earlier version of the bill, but was removed by the Finance Committee after West Virginia American gave lawmakers an information sheet arguing that the required technology was not feasible, too onerous and expensive.

If the requirement does, in fact, prove unfeasible, the water company must report back to the legislature by next year with suggested alternatives.

"I just ask one question," Delegate J.B. McCuskey, R-Kanawha, said, speaking in support of the early monitoring. "If this chemical had not smelled like licorice would we have known it was there?"

The bill requires a registry and annual inspections of all above-ground storage tanks in West Virginia, with a particular focus on tanks within "zones of critical concern," upstream from water intake points. Those tanks would have to be inspected by the DEP, while others would only have to be inspected by an industry-hired professional engineer.

Fees on tank owners would fund the inspections and registry.

Delegate Justin Marcum, D-Mingo, included an amendment that would exempt certain already permitted tanks from paying the fee, calling them duplicative.

Another amendment exempted gas stations and retail heating oil sellers from the fees.

"It's a slippery slope. The whole point is that everybody needs to contribute to this," Manchin said. "How many exemptions can we afford to have?"

Previous versions of the bill had included a long industry-crafted list of tanks that would be exempt from regulation. Those exemptions are mostly removed from the passed version, but the bill regulates only tanks larger than 1,320 gallons.

Evan Hansen, a Morgantown environmental consultant who worked on the bill has called that number a "major problem."

Hansen said lawmakers misinterpreted a federal rule on oil tanks. That rule, the Spill Prevention, Control and Countermeasure Rule, only exempts tanks if the total aggregate volume of all tanks at a site is less than 1,320 gallons. It does not exempt individual tanks of less than 1,320 gallons.

Previous versions of the bill had required any possible sources of contamination within ZCCs to have a stricter "individual" permit from the DEP, rather than a more lenient "general" permit but the House Finance Committee took out that language.

Individual permits are much more closely scrutinized and require a public comment period, while the general permit process is more streamlined.

On Wednesday the House compromised: Sites that have above-ground storage tanks within ZCCs would need an individual permit, but other possible sources of contamination -- things like construction sites and car washes -- within the zones could have a general permit.

The bill contains at least three new exemptions to the Freedom of Information Act, aimed at keeping chemical information secret from terrorists. But there are already several homeland security exemptions in FOIA law and the new chemical-specific exemptions may be in conflict with the federal Community Right-to-Know Act, which requires information on chemical inventories to be available to the public.

Every water utility in the state would have to submit a plan to the Department of Health and Human Resources, detailing how they would respond to a water contamination. The plans must include a study of the feasibility of adding a second water intake point, or several days of raw water storage.

If West Virginia American Water Company's treatment plant in Charleston had either a second intake or water storage, it perhaps could have shut off its primary intake and kept its system from being contaminated with the coal-cleaning chemical Crude MCHM.

The bill now needs to be approved by the Senate, or the Senate and the House must iron out their differences in a conference committee.